Health Care Reform Death Watch?

I have no idea! The more commentary I read on the Supreme Court’s upcoming decision on the Patient Protection and Affordable Care Act, the less I know about its chances of survival.

Here’s a speculation that it could survive even without the mandate.

Here’s a long article refuting the doomsayers. It is based on actual knowledge of the way the Supreme Court works. It helps to have the print version to carry around with you until you finish it. Unless you’ve got a few hours of computer time to spare this weekend.

Here’s a related (why did this make me laugh?) article about the Supreme Court hitting new lows. In approval rating (44%).

Apparently 7/8 of those surveyed believed that the justices make decisions based on more than neutral legal analysis.


Whether or not it’s true (achooscalia!), it’s a stunning indicator of how little we believe in the possibility of neutrality. And how deeply we expect political belief to influence us, even the best of us. Even those of us with the greatest responsibility to remain impartial.

And only 24% of those surveyed want the PPACA to stay intact. An astonishing indicator of how poorly the Democrats have sold the legislation these past 3 years.

By Independence Day, we’ll know! At least some people will be celebrating the foundations of our democracy. By then, we’ll know which people.

Have a great weekend! Thanks for stopping in!

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10 thoughts on “Health Care Reform Death Watch?

  1. Inder says:

    The legal issues on this one are incredibly complicated, and I’ll be curious to hear how the Supreme Court rules. I do think that the Court can act in partisan ways sometimes (and it’s fascinating to me that this case harkens back to another time in history when the court acted in very partisan ways – the New Deal, when FDR basically blackmailed the court with his constitutional power to pack the court, forcing them to pass any his economic legislation – while this is considered a great liberal victory, it’s not one I’d like to see repeated because either side can play that game), but “partisan” looks really different in the Supreme Court than it does in Congress, and is not as easily predictable. The ideologies driving the Court are different and more nuanced than the ones driving legislators, but of course there are still ideologies.

    Honestly, while I am as unhappy as anyone (more unhappy than many) to have a super-conservative SC, I think the idea of Supreme Court Justices acting “impartially” is a load of hooey. I don’t even know what that would look like. If the Court had blindly followed legal precedent all of these years, we would still have slavery, segregation, anti-miscegenation laws, and who knows what else. Accusing the Court of being impartial is usually code for “they’re doing something I disagree with.” Ditto for “activist judges” – that term can be used by either side to describe results they don’t like. But judges are supposed to think independently. Sometimes we love the results, sometimes we hate them, but that doesn’t mean they’re acting outside the scope of their authority to interpret the law. It does disgust me a little that republicans go on about “activist judges” so much when their people are just as activist! The hypocrisy – pretending to be following the will of the founding fathers while doing whatever the hell they want – does bug me. I’d rather a more honest form of judicial activism – like, you put me here to decide questions that have never been answered before so of course my experience will come to bear on my decision, DUH.

    Um, right. Basically, I have no idea either.

    • Elizabeth says:

      I have found that much coverage of the SC feels more like celebrity gossip than legal analysis. Let’s get clues into what (Kennedy, Kagan, Roberts) REALLY think! What did that comment let us predict about what will happen in 3 months? It may as well be predicting who’s pregnant based on a wardrobe choice.

      Is that going too far? Anyway, that’s why I was pleased with the NYRB article which took a long historical view of the role of the court and framed health care reform in terms of at least a hundred years of precedent.

      • Inder says:

        Well, it can be interesting to go over their prior legal records and look at how they decided prior cases to try to divine how they will decide the next one (I admit I tend to glaze over a bit if this gets too in-depth, haha). But I agree, especially lately, it’s been more gossipy than helpful. But I think even this gossipy-thing actually goes back a long time. Again, I hate that we have such a conservative supreme court, but it’s not the first time in history they’ve been sharply divided along partisan lines, you know? I mean, these people are appointed by partisan politicians, there has always been an effort to control the court through that process. Their lifetime appointments do give them the opportunity to surprise us sometimes, but there’s no guarantee that they will always surprise us by becoming more liberal (as they did during the civil rights movement). It can go both ways.

        In the 60s, states’ rights were a reactionary force and the Supreme Court was a bastion of liberal thought. In our time, that’s reversing, and states’ right is acting more to further liberal ideas (gay marriage), at least in some states, and the Court is no longer a smart place to go in furtherance of a liberal agenda. Liberals need to change their strategies to fit reality. Liberals helped to create the powerful federal government that we see today (thanks FDR), and it’s now biting us in the ASS.

  2. Matthew says:

    I also don’t believe that it is possible to be totally impartial — but I do think it’s possible to strive to be fair and consistent. One aspect of the conservative activist judges that bugs me is how much they will switch their ideology to match the partisan issue of the day. At times they love government (police intrusion on our privacies, please!) and other times they don’t (don’t force us to have health care, please!).

    • Inder says:

      Just playing devil’s advocate here, but don’t you think the liberal justices do the same thing sometimes? You could say the same thing about the liberal justices in reverse (the rights of criminals are more important than protecting people from crime! far reaching economic regulations? no problem!). And the right wing does say that. And like all really clever bits of propaganda, there is a grain of truth to it.

      • Matthew says:

        But in both hypothetical cases you cite, liberal justices would be supporting the rule of law, whether it’s that they think that criminals should actually receive the right of due process, or they think that Congress can do things like forbid toy companies from including lead in their products.

      • Inder says:

        I agree with you, but (1) that precedent was established by liberal justices in the past; and (2) conservative justices are acting within the scope of their authority to say, okay, for those facts in the past, that was warranted, but for these facts before me now, it’s not. Judges always have that ability. The fact that the question wouldn’t be before the Supreme Court if it was completely resolved by stare decisis (because those issues are disposed of early in the process and no one bothers to appeal), so there’s always going to be some room for interpretation. Do justices have the right to scale back on the holdings of prior cases, or even overturn them entirely? Yes, they do. Liberal justices have done this as well, of course, in some cases that I really think are great, but we can’t say they can do that, but conservative justices can’t.

        I agree with you 100% about the hypocrisy, though. What bugs me is that they do it, while citing to the “intent of the founding fathers” in ways that are not historical or the least bit genuine. That makes me want to hurl.

  3. Elizabeth says:

    Thanks for the discussion, you guys!

    This reminds me of the debate about “empathy” when Obama picked Sotomayor. For Obama, the word signified the way that an alternative life experience makes one’s legal interpretations more valid. More pragmatic, more aware of the broader social effects of legislation.

    But the flip side, the oppositional side, interprets that as a “bias,” which is, of course, a 4-letter word.

    And of course, some have pointed out that in a crucial way, the court isn’t diverse at all: it’s all Ivy League.

    I would just want to be careful about a false equivalence between liberal and conservative justices. For one, not many justices are that liberal these days. At all. But I don’t know enough about court history to say much about the influence of partisanship in past eras.

    • Inder says:

      I just think left-wingy folks are too quick to say that the conservative justices are not following precedent, following the rule of law, or otherwise are acting outside their authority. The justices have really broad authority, and overruling or limiting precedent is part of that authority. We may not like it, lawyers may disagree with their legal reasoning, but that’s not the same as saying that they are acting outside their authority. It is hypocritical of the left wing to claim that when the liberal wing of the court overrules precedent (true, these days that’s mostly historical), that’s somehow different than when the now conservative court does the same. While I do strongly disagree with many of the Court’s recent decisions, I generally (sometimes sadly) have to admit that they are acting constitutionally and within the scope of their authority. There are a couple of cases (Gore v. Bush) where there are at least legitimate arguments that they stepped outside of that (but there are arguments going both ways, of course), but by an large, they’re doing what they have a right to do. Sigh.

      • Inder says:

        Also, sorry to go on and on, but you raise a good point above that others have discussed as well. The courts, no matter how liberal the individuals in it, are inherently conservative, and the Supreme Court the most conservative of all. With a few exceptions (the 1950s-70s) it has been a historically conservative force for centuries. Maybe the left got a little spoiled during those awesome liberal decades. It is sad to think it’s over now, but it sure appears to be. My new (sad, cynical) personal hope is that we can keep my favorite liberal causes OUT of the Supreme Court so that they have a fighting chance. Gah.

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